451 F.

2d 1319

UNITED STATES of America, Plaintiff-Appellee,

v.
Joaquin PRADA, Defendant-Appellant.
No. 292, Docket 71-1528.

United States Court of Appeals,

Second Circuit.
Argued Oct. 8, 1971.
Decided Nov. 30, 1971.

Gino P. Negretti, Miami, Fla., for defendant-appellant.

M. Blane Michael, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S.
Atty. for the Southern District of New York, Robert G. Morvillo, Asst. U.
S. Atty. of counsel), for plaintiff-appellee.
Before WATERMAN and SMITH, Circuit Judges, and ZAMPANO,*
District Judge.
PER CURIAM:

Joaquin Prada appeals from a judgment of conviction on trial to the jury in the
United States District Court for the Southern District of New York, Dudley B.
Bonsal, Judge. Appellant, charged with five others1 in a sevencount indictment
with trafficking in narcotics, and with conspiring to do so,2 in violation of 21
U.S.C. Secs. 173 and 174, and 26 U.S.C. Secs. 4705(a) and 7237(b), was
convicted on the first three counts, to wit: (1) possession of approximately onehalf gram of heroin on March 12, 1970; (2) giving one gram of cocaine on the
same day to one Angioletti, a federal narcotics agent; and (3) selling and
facilitating, together with others, the sale of approximately one kilogram of
heroin on March 13, 1970. Appellant was sentenced to seven years
imprisonment on each count, to run concurrently, and is presently enlarged on
bail. We find no error and affirm the judgment.

The government's case, disputed only on the ground of mistaken identity,

detailed a series of three incidents involving narcotics on March 12 and 13,

1970. On the afternoon of March 12, Agent Angioletti drove to the Washington
Heights area of Manhattan to obtain a cocaine sample, was met there by an
informer, and introduced to appellant and a co-defendant. The informer
departed after completing the introduction, and witnessed none of the
subsequent events. Agent Angioletti followed appellant by car to a local service
station owned by appellant. Unable at that time to obtain cocaine, appellant
removed a bag of heroin from a pipe in his garage and gave it to a co-defendant,
who, in turn, gave a small sample to the agent. That evening Agent Angioletti
returned to the garage where appellant gave him a small bag of cocaine. A
second narcotics agent maintained surveillance over all the foregoing activities.
The following evening Agent Angioletti returned to the garage, and, while a
third narcotics agent remained outside in the car, negotiated directly with
appellant a $25,000 heroin purchase. The two agents came back later that night
to consummate the purchase with appellant's co-defendants, appellant being
present in the garage but in another room at the time.3
3

Appellant's only substantial claims on this appeal center on the same facts
which underlay his defense of mistaken identification at trial. In reports filed by
the federal agents during the period they dealt with and observed appellant, he
was described as a 160-pound male with brown hair about 35-40 years old; in
fact, appellant was at his trial 24 years old, had black hair and weighed 140
pounds.

There was ample evidence, however to support the jury's apparent rejection of
appellant's mistaken identity defense. The force of the alleged difference in hair
color was weakened by appellant's admission that he had shaved his head after
his arrest, and by the introduction in evidence of a color photograph of
appellant from which the jury might have found he had brown hair. The 20pound discrepancy in weight may be explicable by the year which elapsed
between the narcotics sale and the trial. The error in estimating appellant's age,
while surprisingly large, was apparently overcome by the testimony of three
federal agents, all of whom had numerous opportunities to observe appellant,
and all of whom identified him at trial.

Appellant places his main reliance on the contention that the government
should have produced the informer as the only witness who could have
impugned his identification at trial by the federal agents. Assuming, arguendo,
that the demand for production of the informer was sufficiently pressed on the
court below, cf. United States v. Coke, 339 F.2d 183, 184 (2d Cir. 1964), the
fallacy of appellant's argument to this court is most forcefully demonstrated by
examination of the cases he cites in its support. All of them are taken from
Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), and,

like Roviaro, all involve the refusal of the government to disclose the identity
of an informer, not the refusal to produce him.4 Appellant concedes he knew
the informer's identity and failed to subpoena him. The government's obligation
did not extend to production of the informer at trial, even on appellant's
demand. United States v. D'Angiolillo, 340 F.2d 453, 455-456 (2d Cir.), cert.
denied, 380 U.S. 955, 85 S.Ct. 1090, 13 L.Ed.2d 972 (1965).
6

Affirmed.

United States District Judge for the District of Connecticut, sitting by

designation

Two of appellant's co-defendants pled guilty to various counts before trial, one
was severed on the government's motion and pled guilty during trial, and two
are fugitives

The court dismissed the conspiracy count before the case went to the jury

Appellant's absence from the room where the heroin sale was finally effected
will not, as he supposes, enable him to escape criminal liability for the
transaction. In United States v. Morris, 269 F.2d 100, 102 (2d Cir.), cert.
denied, 361 U.S. 885, 80 S.Ct. 159, 4 L.Ed.2d 122 (1959), this court sustained
a conviction for the sale of heroin when there was evidence that the defendant
had "arranged and directed" the sale even though he "did not personally take
payment from or personally deliver narcotics to the agent." Moreover, appellant
was charged not only with the sale of heroin, but with facilitating its sale.
Having produced two narcotics samples and negotiated the major sale, the jury
could reasonably have found that he facilitated that sale

The same defect extends to appellant's claim that the government was required
to produce the informer as a material witness to a series of events he never saw.
The informer disappeared from this drama after making the introductions